Appeal 2006-2133
Application 10/679,144
single prior art reference discloses, expressly or under the principles of
inherency, each and every element of a claimed invention as well as
disclosing structure which is capable of performing the recited functional
limitations. RCA Corp. v. Applied Digital Data Systems, Inc., 730 F.2d
1440, 1444, 221 USPQ 385, 388 (Fed. Cir.); 468 U.S. 1228 (1984); W.L.
Gore and Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 1554, 220 USPQ
303, 313 (Fed. Cir. 1983), 469 U.S. 851 (1984).
With respect to independent claims 74-76, the Examiner indicates
(Answer 4) how the various limitations are read on the disclosure of Basceri.
In particular, the Examiner directs attention to various portions of the
disclosure at columns 6-9 of Basceri.
In our view, the Examiner’s analysis is sufficiently reasonable that we
find that the Examiner has as least satisfied the burden of presenting a prima
facie case of anticipation. The burden is, therefore, upon Appellants to come
forward with evidence and/or arguments which persuasively rebut the
Examiner’s prima facie case. Only those arguments actually made by
Appellants have been considered in this decision. Arguments which
Appellants could have made but chose not to make in the Briefs have not
been considered and are deemed to be waived [see 37 CFR
§ 41.37(c)(1)(vii) (2004)].
Appellants’ arguments in response assert that the Examiner has not
shown how each of the claimed features is present in the disclosure of
Basceri so as to establish a case of anticipation. Appellants’ arguments (Br.
14-16; Reply Br. 6) focus on the contention that, in contrast to the claimed
invention, Basceri does not disclose the preheating of the wafer before the
deposition of the PZT film.
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